Monday, November 9, 2009

Too Many Blow Jobs Spoil the Case

It's always about the money.

Actually, in this case it's about what they did with the money. The case is Commonwealth of Pennnsylvania v. Sun Cha Chon. In January 2008, the Honorable Robert L. Steinberg of the Lehigh County Common Pleas Court dismissed the charges against Ms. Chon. Last week, a three-judge panel of the Superior Court affirmed Judge Steinberg's decision.

Ho hum. These things happen. Now and again the defendants get a legal win. Why am I bothering to write about just another case - and in Pennsylvania, where I don't practice? It's because of why Jude Steinberg dismissed the case. It's because we've entered the mythic world where man bites dog. Steinberg dismissed due to "outrageous government conduct." By the investigating cops.

So what did Sun Cha Chon do to generate an investigation more outrageous than the typical hiding exculpatory evidence or coercing confessions or doctoring a photo array or making secret deals with a jailhouse snitch or . . . ? Was she a serial killer? Was she stealing from elderly widows? And what the hell did the cops do, anyhow, that was worse than what they generally get away with?

Ms. Chon, it is alleged, ran a brothel (the Shiatsu Spa), and was herself a prostitute.

The police got involved because a customer who was getting a massage couldn't afford a hand job so he went to the state police to complain. (It's not clear from the record just what his complaint was. Were they overcharging for the hand job? Was it a bait and switch? Did he think that if he couldn't afford a hand job nobody else should get one, either?)

OK, prostitution is a crime. So is running a whorehouse. The police went to work. Fortunately for the cops (and, as it happens, for Ms. Chon), the disgruntled customer (DC) volunteered to return to the Shiatsu and actually get that hand job - as long as the police provided the money. Seemed like a good idea to the cops. So they wired him for sound, gave him $100, and sent him off to Shiatsu heaven.

Oh, maybe I wasn't altogether clear. They gave him $60 to pay for sex. The other $40 was for him to have sex. Yes, it was to be the unusual sexual encounter where both the prostitute and the customer get paid. Condoms in pocket (DC knew to take precautions), DC went back to the Spa where he paid "Gina" (Chon) $60 for a hand job and the right to fondle her breasts. Back at the police department, he and the cops giggled a lot while they listened to the tape.

Because you can never have too much evidence, the cops paid him three more times to go back to the Shiatsu for sex. He got blow jobs. He had intercourse. He apparently did other fun stuff that the court doesn't detail. Each time both he and the prostitute got paid by the police for having sex. Life was good.

Then the police got a search warrant and busted the place.

Judge Steinberg explained why the police conduct was so outrageous. (The Superior Court agreed.)
[T]he police used sex as a weapon in its investigatory arsenal, that they permitted the sex to continue even after having enough evidence for an arrest, and that the sexual conduct was entwined with the investigation. The police conduct is made more egregious because they permitted or acquiesced in the most intimate of sexual encounters. They did so even though it was unnecessary to their investigation, and they learned very little by doing so. The mere agreement to perform sexual acts for money would have satisfied the statute, and permitted the police to secure a search warrant. . . .

Accordingly, we conclude that the decision to send the citizen into Shiatsu Spa on four occasions for a smorgasbord of sexual activity violates principles of fundamental fairness. Neither prostitution activity inside Shiatsu Spa nor the police decision-making is to be condoned. We expect more from the police, and demand that they conduct their investigations and utilize their resources without resorting to such embarrassing investigative techniques. No adequate supervisory guidance was
provided, no standards existed for this type of investigation, and some of the behavior by the participants was sophomoric.
So there you have it. Mix a "smorgasboard of sexual activity" with "sophomoric" cops and the defense wins. At least when the crime is prostitution. Judge Steinberg was careful to articulate the Heinous Crime Rule (also known as the Dick Cheney torture test).
For example, if this case involved international terrorism or a threat to the safety of our citizens, then the police conduct would not be as easily challenged.
Oh, according to this report, the prosecutor will be appealing.

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